R. v. Miller Date:, 2011 BCPC 312

Citation: R. v. Miller Date: 20110505 2011 BCPC 0312 File No: 26884-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ADRIAN STEPHEN MILLER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. A. GRAY Counsel for the Crown: T. Bauman Counsel for the Defendant: B. Josephy Place of Hearing: Prince George , B.C. Date of Judgment: May 5, 2011 [ 1 ] THE COURT: Mr. Miller, I do need to summarize the facts briefly. [ 2 ] We had a situation at the apartment block here in Prince George where the damage occurred.

Of course, it was a mischief allegation that came forward and you were convicted of. [ 3 ] That incident date was October 14th, 2007, and it is now three-and-a-half years later and the matter is before the courts for final resolution. [ 4 ] The circumstances at the apartment were very concerning to me. I treated them as very serious incidents. [ 5 ] The apartment block was, or the apartment unit itself was damaged extensively, and it appeared over a protracted amount of time. In other words, damage to the walls, the carpets, windows and various parts of the apartment.

Water was left running from the faucets in both kitchen and bathroom. [ 6 ] Of course, it was detected fairly quickly by the staff, but nonetheless, there were efforts made in a variety of the aspects at the apartment, to cause damage to the apartment. [ 7 ] You had been confronted earlier by the landlord or the manager about the non-payment and eviction, and of course, that was

upsetting to you. Financial circumstances were strained. You were having difficulties in your own life. [8] As you dealt with that situation, the manager became concerned or was worried about her own safety, during that incident, whenyou were finally confronted for the damage by the manager and the property manager. [9] You had a car. You were in a car and you brought the car forward, not in a dangerous way perhaps, but in an intimidating wayso that it came adjacent to the property.

In other words, the front bumper of the car came very close to the manager, all of that as youwere leaving the scene, as it were, and you departed. [10] They then attended at the apartment and found the damage. [11] Now, I have to consider those circumstances as surrounding what happened and the conviction is based upon that. [12] Also, as we know from the pre-sentence report, I have to examine the character that has been displayed by you, not only in thatincident, but throughout your activities as a student, in your youth, and now as a young adult. [13] As Ms.

Josephy said, there are a number of matters to be commended for your conduct. [14] You are a student. You have been in a variety of programs. Perhaps your progress has not been as great as you would like and Itake into account there has been some mental health issues that have perhaps conditioned that, but you have been making contributions tothe community. We have the volunteer work that you have done in various aspects. I take that into account. [15] The other matter that I have to consider in terms of assessing your character and your conduct in the community was the entiretrial process itself.

You conducted your own defence and I must say that you did that very well. [16] You were able to raise a number of issues and, in my view, perhaps having somewhat encountered some difficulties as alayperson dealing with Charter issues and a variety of aspects about, perhaps, disclosure and evidence. Nonetheless, you still were ableto raise the issues and speak on them in very good detail. [17] The concerning thing to me about any of that, is not the fact that you had a trial or you entered a not guilty plea.

That is entirelyyour right. [18] The Crown has to prove their case beyond a reasonable doubt and you are fully entitled to insist on that. [19] The concern I had during the trial was that it appeared to me that as steps were taken in the process of the trial itself and rulingswere made, you still had some difficulties understanding the steps that would follow from that; in other words, the consequences ofrulings, say, regarding evidence or other aspects. [20] It appeared to me, during the trial, that your comprehension as to what would follow from a particular result and how it wouldflow through, was not great, and you had difficulty assessing information to that extent.

That concerned me. [21] Perhaps it reflects on the mental health issue, but also the way that you perhaps assessed the situation at the apartment, in termsof you were being evicted and you felt that matters were not being fairly dealt with at the apartment. I perceived, to some extent, thatattitude or that understanding during the court process. [22] I am also concerned about the fact that leading up to the trial, the trial preparation in itself, there were a number of steps takenthat delayed the matter. The matter went in to Kamloops on more than one occasion to be dealt with there, and coming back.

All of thatdelayed the matter.

So as we know, we are now dealing with it in May of 2011. [23] You are not to be faulted for all of that, but as I view the matter, there were several steps there where, again, you did not fullyappreciate what was going to be the result of a process step or a decision made, and you seemed not to comprehend what was aconsequence from that. [24] In my view, that is a serious factor for me to take into account in assessing what is appropriate for a sentence. [25] As I say, the issue is, looking at the aspects of the conditional discharge, is it appropriate for the court to grant a conditionaldischarge?

We look, of course, at your own personal interests, how that can be benefitted from a conditional discharge, and also, is itcontrary to the public interest? [26] In other words, is there something that would be a detriment to the public interest if you were given a conditional discharge? [27] I have explained how I view the circumstances surrounding the trial and how I view your own character in these matters, Mr.Miller. [28] I have taken note of the court cases and, of course, referring to not only the provisions surrounding the conditional discharge andthe precedents in case law from Fallofield (R. v Fallofield (1973) (BC CA), 13 C.C.C. (2d) 450) and following that, orsubsequent to that, but also the principles of sentencing that are enumerated in our

Section 718 of the Criminal Code, and the otheraspects of the sentencing provisions. [29] I do note that one of the large areas for me, in terms of this matter, is to make reference to and be guided by 718.1, which is thatthe court must be ensuring that a sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. [30] Of course, 718, the initial

section regarding sentencing, talks about the importance, that the fundamental purpose of sentencing isto contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, and peaceful, and safe society, andthen the

section enumerates the six factors which include to denounce, to deter, and to assist in rehabilitating the offenders.

[ 31 ] As I view it, the probation will accomplish the aspect of rehabilitation. [ 32 ] In my view, a probation order of 18 months is appropriate and I will be making that order and providing terms regarding that. [ 33 ] Dealing with the question of a conditional discharge or a suspended sentence, as I have viewed all the circumstances, I am concerned that if a court were to grant a conditional discharge it would not be proportionate to the circumstances that occurred that day. [ 34 ] As I view it, the appropriate recognition of the administration of justice, a sentence of a conditional discharge is not a proper reflection of the incident and how the community at large views values of respect for property, and respect for rules, and certainly statutory law. [ 35 ] Now I am of the view that it is necessary to order a suspended sentence and not grant you a conditional discharge, but I wish just to specify that, as I view it, looking at your own personal interests, an aspect of that, in my view, is the specific deterrence. [ 36 ] Specific deterrence is not properly met if I were to grant you a conditional discharge.

In other words, it is not, in my view, in your personal interests that you be granted a conditional discharge, because the emphasis of deterring you from this type of conduct and this type of behaviour in a community, is not satisfied. [ 37 ] So, on that aspect, as I view it, in some ways your own personal interest is not met with a conditional discharge. [ 38 ] In addition, of course, as I have alluded to, I do not see it as being appropriate in the public interest.

In other words, I would see that the conditional discharge is contrary to the public interest. [ 39 ] Again, it does not satisfy reinforcing our values as a community and reinforcing the fact that, in this regard, it is important for the community at large to recognize this type of offence is not treated in the fashion of a conditional discharge, but is treated more in what I view as a more appropriate emphasis and punishment in a suspended sentence with probation. [ 40 ] Now I recognize the difficulty about the aspects surrounding your future training and your wishes to become a professional.

That is a factor, certainly, but it does not outweigh, as I have characterized these other factors, the importance to the community at large. [ 41 ] Your private interest is certainly something to recognize, but it does not trump or outweigh these other aspects of what is suitable in terms of reinforcing our values as a community. [ 42 ] In addition, I recognize the difficulty, perhaps, that may arise because of the landed immigrant status.

As I understand it, that has been a status that has continued for perhaps a number of years and in my view, that is something that the court should certainly be alerted to and told by the counsel of -- I have the information now. [ 43 ] Again, reflecting on the incident and how it occurred at Prince George, and how the process developed throughout our court proceedings, in my view, that aspect again has to take a secondary position in terms of the values that I, as a judge here for the province of British Columbia, must properly reflect on behalf of the community. [ 44 ] So the sentence will be one of a suspended sentence with a period of probation of 18 months.

I will just provide those terms now. [ 45 ] It will be necessary for you to meet with the court staff at Kamloops and complete the documentation there, and I will direct you now to do that, after the conclusion of our hearing, and that once you have signed those documents, then of course, you will be attending at the local probation office in Kamloops. [ 46 ] So the terms of the probation order start out with terms of "keep the peace and be of good behaviour".

So that is a mandatory term for your order. [ 47 ] Also, appear before court when required to do so. [ 48 ] The reporting term will be under 201, and this information will be prepared by our Prince George registry staff and we will provide it to Kamloops shortly. [ 49 ] That term states that you must report to a probation officer at Kamloops by 4:00 p.m. today, May the 5th, and that under that term you must report as and when directed by the probation officer. [ 50 ] 202 is the term that you must provide to the probation officer your name, address and telephone number.

If you change the address, telephone number, you must give prior written notice to the probation officer. That is under 202. [ 51 ] Now in my view it is appropriate there be a restitution order. There was considerable damage that occurred when you were, in effect, entrusted with that apartment unit, that property. [ 52 ] It was of a high value to the individual that gave you possession of it. It is appropriate that there be the compensation to the corporation, and that the amount, I will state, is $1,300. [ 53 ] I accept Ms.

Josephy's comments and it is appropriate that it simply be a stand-alone restitution, not part of probation. It will simply be an amount now that can be pursued by individuals, the company, if they wish to. It is not part of any court probation order itself, and simply the amount of $1,300. [ 54 ] Mr. Bauman, that amount is simply to the credit of the corporation, as listed in the information? [ 55 ] MR. BAUMAN: That's correct, Your Honour.

[ 56 ] THE COURT: T. Verstraete Ltd.? [ 57 ] MR. BAUMAN: Yes. [ 58 ] THE COURT: Yes. Now the conditions within the probation order will include the counselling term, that is the 227, and that term says that you must meet with the probation officer. Assessments may be directed by that officer, and counselling, and programs.

You follow those directions and we will deal with it specifically on the issues of anger management. [ 59 ] I will note, Madam Clerk, psychiatric and psychological health, just to cover the mental health aspect, which is a large concern for me. [ 60 ] The other term will be there is no contact under 207. So you are to stay away from those individuals, and again, Mr. Bauman, if you could just provide the full spelling? [ 61 ] MR. BAUMAN: Pardon me, Your Honour. I was reviewing another -- the spelling of which individuals? [ 62 ] THE COURT: Yes. The property manager? [ 63 ] MR.

BAUMAN: Larry Storm. [ 64 ] THE COURT: Thank you. [ 65 ] MR. BAUMAN: And Bonnie Lawrence. [ 66 ] THE COURT: Storm is S-t-o-r-m? [ 67 ] MR. BAUMAN: Yes. And Lawrence, L-a-w-r-e-n-c-e. [ 68 ] THE COURT: Yes, and not to attend at that location. That would be under 211 -- not to be found within a hundred metres of the address in Prince George, which is 4427 Glen Shee? [ 69 ] MR. BAUMAN: Yes, Your Honour. [ 70 ] THE COURT: That is spelled G-l-e-n-s-h-e? [ 71 ] MR. BAUMAN: Yeah, G-l-n [sic], space, s-h-e-e. [ 72 ] THE COURT: Thank you.

We will also include the workplace restriction, 212, Madam Clerk, so that for those individuals, Storm and Lawrence, Mr. Miller, you are not to attend at or be within 100 metres of any workplace, residence or school where you understand those people are attending. So you stay away from those locations. [ 73 ] As we know, that would be in Prince George area, and that should not be of any difficulty for you. [ 74 ] Then I will add the Rogers order of 228, and that is to accompany the counselling provision I mentioned earlier.

That will state that you shall take reasonable steps to maintain yourself in such condition that your condition of mental health will not likely cause you to conduct yourself in a manner dangerous to yourself or others. [ 75 ] It then goes on further to say that if the probation officer directs, you attend your family physician and obtain counselling or treatment.

If you do not wish to pursue the treatment, that is, of course -- you are entirely able to make that decision, but if you do not pursue the treatment that is recommended by the doctor, then this term says the doctor must contact the probation officer and advise him of that. Then the probation officer takes steps from that. [ 76 ] Typically, the probation officer would ask you to report regularly, and it could be days. So if there is issues about your instability, because of mental health, then that can all be monitored properly by the probation officer.

That is the purpose of template item 228. [ 77 ] Now the other term will be that you complete some community work service hours, and I am satisfied with the comments from Ms. Josephy that there are opportunities in the Kamloops area for you to do that. We will rely on the item 233. I will insert the term of 40 hours and I will provide that that work be completed within the first 12 months. [ 78 ] In other words, by May the 1st of next year, May 1st of 2012, that work is to be completed. [ 79 ] Now there is a victim of crime surcharge. Mr. Miller, I have made the order of restitution.

I understand you are of limited circumstances, and in my view at this time, it is not appropriate for you to make a victim of crime surcharge payment. So I am going to waive that payment for now, in this matter entirely. (REASONS CONCLUDED)